'One nation' - but under what?

WASHINGTON
— When the nation's Founding Fathers declared their independence from England in 1776, they stressed that their actions were authorized by a higher authority than even the king himself.

They based this revolutionary credo on their understanding that the fundamental rights of men did not flow from man-made institutions. Rather, those rights flowed from what they saw as deeper truths - "That all men are created equal," and "that they are endowed by their Creator with certain unalienable rights."

To those who signed the Declaration of Independence, these "truths" were self-evident.

Now, 228 years later, the US Supreme Court is at the center of a debate - over the Pledge of Allegiance - that suggests such views about the religious underpinnings of American government may no longer be self-evident.

Indeed, government attempts to highlight religious concepts may be unconstitutional. At issue is whether the inclusion of the words "under God" in the Pledge - as recited by schoolchildren nationwide - amounts to a violation of the separation of church and state. The case, set to be argued Wednesday at the Supreme Court, cuts to the heart of a long-running dispute over how best to preserve and protect religious liberty.

It also raises a more fundamental question: Why would America's Founding Fathers, who wrote so eloquently of their "firm reliance on the protection of divine providence" in the Declaration of Independence, use not a single devotional word or phrase in the Constitution and Bill of Rights?

Instead, the First Amendment forbids any law "respecting an establishment of religion." Courts have interpreted that provision as mandating a "wall" between church and state. But justices, judges, lawyers, scholars, political leaders, and members of the clergy differ over how high or low that wall should be.

Those favoring a relatively low wall point to the national motto "In God We Trust" on the nation's money as an example of a government reference to God that does not violate the framers' intentions in erecting the church-state divide. They also point to the opening announcement at the US Supreme Court, "God save the United States and this honorable court."

Advocates of a high wall say that government should maintain strict separation in matters of faith and leave to the clergy and the people any use of religious words, symbols, or messages. Government entanglement in matters of faith taint and cheapen what should be private and sacred, they say.

"When you make the argument that this [reference to God in the Pledge] is no longer religious but is civil, or political, or patriotic in its orientation, you are trivializing religion. You are trivializing the meaning of God," says Derek Davis, director of the Dawson Institute of Church-State Studies at Baylor University. "One of the reasons for the separation of church and state is it allows religion to operate freely of [government] so it maintains its sacredness."

It is in this broader context that the dispute over the Pledge of Allegiance arrives at the nation's highest court.

Specifically at issue before the court is whether a policy at the Elk Grove Unified School District in California requiring public school teachers to lead their students in the Pledge each morning amounts to an unconstitutional attempt by the government to indoctrinate impressionable young children with religious dogma. Michael Newdow of Sacramento, Calif., an atheist, filed a lawsuit seeking to prevent his daughter from having to recite the Pledge each morning. A federal judge threw the case out, but a federal appeals court panel agreed with Mr. Newdow, ruling that the school policy amounted to unconstitutional religious coercion by the government.

Newdow's case is further complicated over issues about whether he had proper legal standing to file the suit in the first place. Newdow is not married to his daughter's mother. The mother, Sandra Banning, is raising her daughter as a Christian, and neither mother nor daughter objects to reciting the Pledge. In addition, the family court in California has awarded exclusive authority to Ms. Banning to decide religious and educational issues in her daughter's upbringing.

In urging dismissal of the Newdow suit, lawyers for the school district, the US solicitor general, and Banning argue that since Newdow has no legal right to decide the religious upbringing of his daughter, he has suffered no legal injury from her recitation of the Pledge each morning.

Despite the presence of this technical issue, the vast majority of the briefs filed in the case deal with the merits of the Pledge issue. Supporters of the Pledge in its current form see no constitutional difficulty in the government acknowledging the role of religion in national life by including the words "under God" in the Pledge.

Those challenging the 1954 insertion of "God" into the Pledge say it amounts to an impermissible government endorsement of religion over nonreligion, and that it forces schoolchildren to embrace a particular religious belief (monotheism) in order to express patriotism.

The vast majority of elected officials support the current wording of the Pledge. The US Senate has voted 99 to 0, and the House 416 to 3, to keep "God" in the Pledge. But legal experts say that given the direction of the high court's church-state jurisprudence in recent years, the Pledge case is a close one.

How the Pledge case is resolved will go a long way in defining to what extent the government may play a role in promoting religion and religious concepts in an increasingly diverse nation of believers and nonbelievers.

"When read as a whole, the Pledge is reasonably understood, not as establishing a state religion, but as celebrating and affirming the nation and the historical forces and ideals that formed its unique character," says US Solicitor General Theodore Olson in his brief to the court.

Newdow disagrees. "To single out that one aspect of the nation's origins, and to extol its virtues within the Pledge of Allegiance, is an endorsement contrary to the Establishment Clause's principles," he says in his brief to the court. " 'Under God' in the Pledge is an example of the majority using the machinery of the state to enforce its preferred religious orthodoxy."

Two prior decisions by the high court are likely to play a key role in the resolution of the Pledge case. In 1943, the justices upheld classroom recitation of the Pledge, provided any objecting students were not forced to participate. Although that case was decided before the words "under God" were added to the Pledge, its supporters say the same opt-out principle applies to those who might object to repeating the words "under God."

In the second case, the justices ruled in 1992 that the Constitution forbids a member of the clergy from offering a prayer at a middle school graduation ceremony. The high court reasoned in a 5-to-4 decision that offering such a prayer would force students to participate in a religious exercise at a school-sanctioned event.

Pledge challengers say the "under God" component of the Pledge is an even more egregious effort by the government to coerce schoolchildren into participating in a daily religious exercise.

"The Pledge puts schoolchildren who do not embrace monotheism to the Hobson's choice of affirming religious beliefs they do not hold and foregoing participation in a patriotic ritual," says Peter Irons, director of the Earl Warren Bill of Rights Project at the University of California, San Diego, in a friend-of-the-court brief.

"The 1954 law adding 'under God' to the Pledge made affirmation of religious belief an official element of patriotism and religiosity an official element of national identity," adds David Remes in a friend-of-the-court brief on behalf of Americans United for Separation of Church and State. "Reciting the Pledge thus became a religious exercise - not because it refers to 'God,' but because it is a pledge."

Not every organization strongly opposed to religious activities in public schools is opposed to the Pledge. In a friend-of-the-court brief, the National Education Association says even with the reference to God, the Pledge is a patriotic observance rather than a religious exercise.

Using the words " 'under God' does not convert the Pledge into a state-sponsored profession of religious belief," writes Robert Chanin in the NEA brief. "Rather, the words are best understood as a reflection of the simple historical fact that the founders believed in a supreme being, and that their belief led them to dedicate the nation to the fundamental secular precept that all men have unalienable rights to liberty and justice," Mr. Chanin says.